From: Greg Broiles <gbroiles@netbox.com>
Date: Wed, 29 Jan 1997 06:58:19 -0800 (PST)
To: Jim Choate <ravage@einstein.ssz.com>
Subject: Re: Libel & the 1st Amendment
Message-ID: <199701291458.GAA03384@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


At 10:42 PM 1/28/97 -0600, Jim Choate wrote:

>It has been asserted by at least one member that the 1st Amendment protects
>libelous or other defamatory speech. 

Defamation is not protected by the First Amendment; but the First Amendment
limits the application of defamation law in many circumstances. For
example, the First Amendment requires plaintiffs to prove "actual malice"
if they are a public official, public figure, or a private person seeking
punitive damages.

So if you want to think of defamatory statements as those which are false
and injurious to someone's reputation, yes, the First Amendment protects
some of them. (By definition, defamation is outside the protection of the
First Amendment, but I get the impression that you're not trying to use it
as a term of art.) 

>This is hokem. The 1st most certainly does not protect lies in any form.

The First Amendment protects some lies. As Justice Powell wrote for the
majority in _Gertz v. Robert Welch_, 418 U.S. 323, 339 (1974):

"Under the First Amendment, there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries, but on the competition of other ideas. But
there is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances society's
interest in "uninhibited, robust, and wide-open" debate on public issues.
New York Times Co. v. Sullivan, 376 U.S. at  270. They belong to that
category of utterances which "are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social
interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568,
572 (1942).

"Although the erroneous statement of fact is not worthy of constitutional
protection, it is nevertheless inevitable in free debate. As James Madison
pointed out in the Report on the Virginia Resolutions of 1798: "Some degree
of abuse is inseparable from the proper use of every thing; and in no
instance is this more true than in that of the press." 4 J. Elliot, Debates
on the Federal Constitution of 1787, p. 571 (1876). And punishment of error
runs the risk of inducing a cautious and restrictive exercise of the
constitutionally guaranteed freedoms of speech and press. Our decisions
recognize that a rule of strict liability that compels a publisher or
broadcaster to guarantee the accuracy of his factual assertions may lead to
intolerable self-censorship. Allowing the media to avoid liability only by
proving the truth of all injurious statements does not accord adequate
protection to First Amendment liberties. As the Court stated in New York
Times Co. v. Sullivan, supra, at 279: 'Allowance of the defense of truth,
with the burden of proving it on the defendant, does not mean that only
false speech will be deterred.'

"The First Amendment requires that we protect some falsehood in order to
protect speech that matters."

and Justice Brennan, in _NAACP v. Button_ 371 U.S. 415, 444 (1963):

"For the Constitution protects expression and association without regard to
the race, creed, or political or religious affiliation of the members of
the group which invokes its shield, or to the truth, popularity, or social
utility of the ideas and beliefs which are offered."   

So, yes, the First Amendment protects some lies. According to your
hypothesis, the country should be collapsing around us any day now because
of it. Last one out turn off the lights, ok? 


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